Wednesday, March 12, 2014

Dartmouth's disturbing hostitlity to the rights of young men accused of sex offenses

Dartmouth College is cracking down on sexual assault. It is reasonable to expect that the reforms eventually enacted will be consistent with Dartmouth's hostility to the rights of young men accused of sex offenses.

Its Sexual Assault Awareness Program coordinator Amanda Childress recently asked, "Why could we not expel a student based on an allegation [of sexual assault]?" The question is unworthy of any, much less a serious response, but instead of distancing itself from the remark, the administration defended it.

A couple of years ago, Dartmouth's Associate Dean of College for Campus Life April Thompson was talking about sexual assault hearings when she said this: "We are a college, a place of learning and teaching, so we have to think about what gives the accused the opportunity to learn." The mindset that the "accused" needs to be taught a lesson before an adjudication suggests a bias antithetical to the presumption of innocence, consonant with Dean Childress' rush-to-judgment mentality that assumes guilt based on a sexual assault accusation.

In 2011, while an investigation was ongoing over a sexual assault that police eventually determined "never happened," Dartmouth's Director of Safety and Security and College Proctor made problematic statements suggesting that an assault, in fact, occurred: “We want people to know when something like this happens so that they’re aware and can take precautions. Any time there’s an incident like this — any place on the campus — we have the same level of concern." (When "something like" what occurs? A false rape claim?)

In 2011, Dartmouth welcomed Jackson Katz to campus to tell anyone who cared to listen that when it comes to sexual abuse, cautioning women to take the well-lit route back to their dorm doesn't get at the root cause of the problem. "The root cause," he said, "is men." Not "men who rape," just "men." Katz's shtick is that men need to raise their standards and stop being mere "bystanders"--men with "moral integrity" are needed "to break complicit male silence." You see, men who would never dream of raping another human being are unindicted co-conspirators to rape.

It is little wonder that Dartmouth's procedures in sexual assault cases are appallingly insensitive to the accused. Unless simultaneous criminal charges have been filed, the accused student cannot have a lawyer participate in the proceedings. (Tellingly, the college itself does have the right to have an attorney present during the hearing, to offer "procedural or legal matters necessary to ensure a fair proceeding"; the college does not explain why this right is denied to the accused student.) The accused student doesn't have the right to cross-examine the accuser. The accuser has the right to close the proceedings to the public, even if the accused student wants it public to clear his name. Perhaps most chillingly, guilt is determined by a preponderance of evidence and a majority vote of the five-member (two students, two professors, and one administrator) disciplinary panel. As a result, if three of the panelists conclude that the accuser is ever-so-slightly likelier than not to have told the truth, the college will brand the accused student a rapist, even if the other two members of the panel are 100 percent convinced that he was innocent.

"All sex offenders found guilty of rape by the Committee On Standards must be expelled from the College immediately with absolutely no exceptions. . . . Additionally,the past offenses of accused perpetrators must be taken into account when determining the guilt of someone accused of rape or sexual assault."The problems with the demand are numerous. We'll focus on three:

First, automatic expulsion for college students found guilty of sexual assault at colleges isn't going to curtail rape. It isn't going to keep a rapist from abusing women somewhere else, or even in the same place where the offense that led to his expulsion occurred. In a country where the majority of college students are commuters, booting a rapist out of school isn't going to stop him from frequenting the same off-campus hangouts where he committed his misdeeds as a student. If we were really serious about protecting women from rape, we would insist that every report be turned over to the professionals in law enforcement.

Second, a rule to stiffen the penalty for sexual assault likely will result in fewer adjudications of guilt, an effect not intended by its advocates. Where schools mandate extreme punishments for sexual assault, triers of fact are less likely to find guilt in doubtful cases because they know the consequences for the accused are extreme. In A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599, 655-56 (2005), Professors I. Ayres and K. Baker explained:

. . . if the . . . sanction is too strong, there is not likely to be widespread enforcement. . . . attempts to change a norm by severely punishing that which has previously been unaddressed or underenforced are often unsuccessful.

The simple fact is that the public at large often refuses to see the "nontraditional" [acquaintance] rapist as a rapist at all and therefore refuses to either mark him or punish him as such. After an acquittal in a well-publicized college gang rape, one juror explained that the main concern of some jurors was not wanting "to ruin the boys' lives." Decision makers may be willing to ruin the life of a "real rapist," but they will not impose comparable punishment for what they see as a less severe crime.

In schools where expulsion for sexual assault is mandated, it is reasonable to assume that even in cases where, technically, it is more likely than not that the accused is guilty, if there exists reasonable doubt about his guilt, most triers of fact will withhold the "death penalty" of expulsion and will find the accused "not guilty." The expulsion policy thus leads to a sort of jury nullification for doubtful sex cases, an unintended, but welcome, antidote for the harsh "Dear Colleague" letter. The get-tough-on-rape crowd has unwittingly struck a blow for the accused.

Third, the proposal that prior offenses must be taken into account when determining guilt echoes one of the most dangerous legislative "reforms" enacted by Congress to make getting a rape conviction easier. Federal Rule of Evidence 413 provides that "in a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." The jury is to be informed of the defendant's prior acts whether or not the defendant takes the stand.

For no other crime does the law allow such evidence to be admitted. Rule 413 was widely condemned by the overwhelming majority of lawyers, judges, legal organizations and law professors on the Advisory Committee on Evidence Rules, but Congress bowed to pressure from law-and-order types and women's groups and passed the law. R. Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 Akron L.Rev. 981, 1024 (2008).

Professor Richard Klein pointed up a stark double-standard in the way this law treats the accused versus the way Rape Shield Laws treat rape accusers:

The rationale behind rape shield laws is that prior conduct of the victim should have no impact on an assessment of what occurred as to the incident on trial. But as to the defendant, evidence of prior conduct is to be allowed with the inference that "if he did it in the past, he did it this time as well." Such a determination, one not based on fact or evidence, was exactly what rape shield laws were designed to, and do, guard against as to the alleged victim. The accuser is protected, the accused is not.

R. Klein, supra at 1024.

We feel like we are arguing with the wind. Anyone who dares to express concern for the rights of the presumptively innocent -- even Brett Sokolow, who has done more to advance the anti-rape agenda on campus than anyone -- is branded a rape apologist or a victim blamer.